The Pulpit's Bully

There are two stories in the mix that define the perilously strange (and perilously vast) boundaries that we have come to set for the powers of the president of the United States who, at the moment, is Barack Obama of Illinois, but who, one day, could be Marco Rubio of Florida, or Chris Christie of New Jersey, or some nameless child born over the weekend in San Antonio, or Denver, or on the Pine Ridge reservation in South Dakota. (God bless America.) On Monday, the current president flew to Minneapolis to pitch his new initiatives regarding the country's ongoing infatuation with firearms. As he did so, word began filtering out of Washington that the ban on military-style assault weapons likely will be allowed to come to a vote in the Senate for the purposes of voting it down. This is said to be a strategic move so that the other provisions of the president's proposal are likely to pass. It is slightly more than half-a-loaf.

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The whole loaf is to be found in the second story. NBC got hold of a memo from the Justice Department in which was laid out the case that the president has the power to use drones to kill American citizens if he and the unelected national security bureaucracy determine that the American in question are "senior operational leaders" of al-Qaida or "an associated force." This is true even if there's no evidence at all that the person or persons being killed are planning to commit an act of terror. The Americans don't have to be accused — let alone charged — with an actual crime. All that suffices for the extrajudicial killing of an American now is that someone (or several someones) in Washington decide that the American has been involved "recently" in "activities" that might threaten a violent act.

Although not an official legal memo, the white paper was represented by administration officials as a policy document that closely mirrors the arguments of classified memos on targeted killings by the Justice Department's Office of Legal Counsel, which provides authoritative legal advice to the president and all executive branch agencies. The administration has refused to turn over to Congress or release those memos publicly — or even publicly confirm their existence. A source with access to the white paper, which is not classified, provided a copy to NBC News.

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There are no definitions given for what "recently," or "activities" mean in this context. There are no definitions provided for any of the words used to justify the policy. The actual meaning of words does not matter in memos like this one. It is the province of the Executive to tell us what they mean. It is the province of the executive to tell us what "murder" means, or "assassination," or "legitimate." They will provide those definitions to the rest of us, ex post facto, maybe, if we are very patient and ask real nicely.

(The law is no help here, either. The memo cites an argument put forth in the case of Hamdan v. Rumsfeld which defines the conflict between the U.S. and al Qaeda as "non-international armed conflict." Why is this conflict "non-international?", you say? Aren't we dropping Hellfires in Pakistan, which is not in Rhode Island? Glad you asked. The conflict is "non-international" because the conflict is between the U.S. and a "transnational non-state actor." In other words, the war is not international because al Qaeda has no flag and is in too many foreign countries. So, because the war is non-international, theoretically, we could blow the hell out of an American citizen living in Brazil. And alas, the guy who runs the bodega next door.)

"A lawful killing in self-defense is not an assassination," the white paper reads. "In the Department's view, a lethal operation conducted against a U.S. citizen whose conduct poses an imminent threat of violent attack against the United States would be a legitimate act of national self-defense that would not violate the assassination ban. Similarly, the use of lethal force, consistent with the laws of war, against an individual who is a legitimate military target would be lawful and would not violate the assassination ban."

So this is where we stand in 2013, in the second month of the second term of this administration — the president does not have the power to convince us fully to stop killing each other, but he has the full power to do it himself. The presidential power to persuade in domestic affairs has melted before a superheated extremist Republican Congress, but the presidential power to act, unilaterally, overseas is more robust than it ever has been. This cannot be said to be truly tyrannical; hell, Caesar was able to give Rome an infrastructure while he was off slaughtering the Gauls. Our presidency now encourages the person in the office to be an inefficient authoritarian. Our presidents have terrible trouble making domestic policy, but no trouble at all making war. They can't rebuild our highways, but they can wreck the goat paths in west Asia.

Much of the talk on the drone story centers around whether or not the revelations will hurt the cause of John Brennan, whom the president wants to head up the CIA. Brennan's a holdover from the previous administration, and he's been hip-deep both in the drone war, and the legal arguments justifying it, throughout the current one. That seems to matter very little to me. The Congress is not ready yet to deny appointment to anyone who has made too much war on the president's behalf. (Congressional reaction to the drone war in general largely has been limited to loud complaining about the administration's lack of transparency, and the corresponding lack of congressional oversight. The administration is still stonewalling congressional demands to see the actual legal memos that the administration has used to justify the killing of Anwar al-Alwaki. In other words, it's pitched as a run-of-the-mill Beltway turf war.) What matters more to me is that we seem to be slow-playing ourselves into a situation in which the presidency becomes an institution primarily concerned with foreign affairs and, specifically, with where we make war, and against whom, and why, and all of those according to reasons that the presidency can decline to share with the rest of us. This puts more distance between the president — any president — and the people who put him in office. It hamstrings the president's power to do anything about the issues most immediate to the people in this country, but it unleashes him to do anything he wants anywhere else in the world. It is a deformative reinvention of the office, and it will come to no good end.